Case Background

In April 2011, police arrested four men for a series of armed robberies of T-Mobile and Radio Shack stores in Detroit, Michigan. One of these individuals confessed to working with as many as fifteen men to commit nine armed robberies. He gave the police his cell phone number and the numbers of some accomplices.

The FBI searched through his cell phone’s records to identify other numbers that were contacted during the time of the robberies. Following this initial inquiry, the FBI asked several magistrate judges for permission to obtain “transactional records” associated with sixteen other cell phone numbers. (The data requested included subscriber information, toll records, call detail records that showed the phone numbers of incoming and outgoing calls, and cell site information at the beginning and end of each call for the numbers in question.) The magistrate judges granted the government’s application pursuant to the Stored Communications Act, under which the government may require the disclosure of certain telecommunications records when “specific and articulable facts show[ ] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”. Note that the government did not request a formal search warrant.

Based on these searches, the police obtained evidence implicating Timothy Carpenter and Timothy Sanders with the crimes. They were soon charged with several violations of federal law. Carpenter and Sanders moved to suppress the evidence derived from the FBI’s search of their cell phones. They argued that this warrantless search violated the Fourth Amendment because there was no probable cause. The United States District Court for the Eastern District of Michigan denied their motion to suppress the evidence.

At trial, the government presented location data from Carpenter and Sanders’s cell phones. The records showed that while several of the robberies were being committed, the duo used their cell phones within two miles of crime scenes. Carpenter and Sanders were convicted of nine armed robberies, and given sentences of 1,395 months and 170 months, respectively. The court refused to set aside their verdict, ruling that the government’s compilation of the defendant’s cell-site records was not a search under the Fourth Amendment; therefore, a warrant was not needed.

The U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s decision. The three-judge panel held:

In Fourth Amendment cases the Supreme Court has long recognized a distinction between the content of a communication and the information necessary to convey it. Content, per this distinction, is protected under the Fourth Amendment, but routing information is not. Here, Timothy Carpenter and Timothy Sanders were convicted of nine armed robberies in violation of the Hobbs Act. The government’s evidence at trial included business records from the defendants’ wireless carriers, showing that each man used his cellphone within a half-mile to two miles of several robberies during the times the robberies occurred. The defendants argue that the government’s collection of those records constituted a warrantless search in violation of the Fourth Amendment. In making that argument, however, the defendants elide both the distinction described above and the difference between GPS tracking and the far less precise locational information that the government obtained here. We reject the defendants’ Fourth Amendment argument along with numerous others, and affirm the district court’s judgment.

The Law

U.S. Constitution, Amendment IV

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Stored Communications Act, 18 U.S.C. § 2703(d)

Requirements for Court Order—A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

Supreme Court Cases

Background:Antoine Jones was suspected of engaging in federal drug crimes. Without obtaining a warrant, the police placed a tracking device on his vehicle, and tracked his movements for a month. Based on the location data collected from the tracking device, he was arrested. At trial, Jones was convicted on a count of conspiracy. However, the conviction was overturned by the U.S. Court of Appeals for the D.C. Circuit, which stated that 24/7 warrantless monitoring of the defendant was unconstitutional.

Holding: The Supreme Court affirmed the lower court, holding that installing a GPS tracker on defendant’s vehicle, without a warrant, in order to monitor him constituted an unlawful search under the Fourth Amendment. The Court rejected the government’s argument that there is no reasonable expectation of privacy in a person’s movement on public thoroughfares and emphasized that the Fourth Amendment provided some protection for trespass onto personal property.

Quotations:

“[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”

“[L]onger term GPS monitoring in government investigations of most offenses impinges on expectations of privacy.”

“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” (Sotomayor, J., concurring)

Background: A woman was robbed in Baltimore, Maryland, and then started receiving threatening phone calls from her assailant. During one of the calls, he instructed her to stand on her porch; a car drove by that was also present at the time of her robbery. The police used the car’s license plate to learn that it was registered to Michael Lee Smith. They then contacted the telephone company and asked them to place a pen register on Smith’s line. This device would record the numbers he dialed from his phone. Based on the logs created by the register, the police concluded that he had been harassing the robbery victim. He was identified in a line-up, arrested, and convicted.

Holding: The Supreme Court held that Fourth Amendment protections are only relevant if the individual believes that the government has infringed on the individual’s reasonable expectation of privacy. This reasonable expectation of privacy does not apply to the number recorded by a pen register because those numbers are used in the regular conduct of the phone company’s business. Because the Fourth Amendment does not apply to information that is voluntarily given to third parties, the telephone numbers that are regularly and voluntarily provided to telephone companies by their customers do not gain Fourth Amendment protections.

Quotations:

“Although [the caller’s] conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed.”

Background: Mitch Miller was charged with carrying equipment used to distill alcohol and bootleg alcohol. The Bureau of Alcohol, Tobacco, and Firearms (ATF) issued subpoenas to two of Miller’s banks, requesting records of his accounts. The banks complied with the subpoenas, and the evidence was used during Miller’s trial. Miller appealed his conviction, alleging that his Fourth Amendment rights were violated.

Holding: The Supreme Court held that a defendants does not have a reasonable expectation of privacy concerning information found in business transaction records, when the government obtains it from a third party.

Quotations:

Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy. He relies on this Court’s statement in Katz v. United States (1967), that “we have . . . departed from the narrow view” that “‘property interests control the right of the Government to search and seize,’” and that a “search and seizure” become unreasonable when the Government’s activities violate “the privacy upon which [a person] justifiably relie[s].” But in Katz the Court also stressed that “[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.” We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate “expectation of privacy” concerning their contents. Cf. Couch v. United States (1973). Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate “expectation of privacy” in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.

Background:Acting on suspicion that Katz was transmitting gambling information over the phone to clients in other states, federal agents attached an eavesdropping device to the outside of a public phone booth that Katz used. Based on recordings of his end of the conversations, Katz was convicted for the illegal transmission of wagering information from Los Angeles to Boston. On appeal, Katz challenged his conviction, arguing that the records could not be used as evidence against him. The Court of Appeals rejected this point, noting there under prior precedent, there could be no search without a physical intrusion, or “trespass,” into the phone booth itself.

Holding: The Supreme Court overturned the lower court, ruling that Katz’s Fourth Amendment rights had been violated. An influential concurring opinion by Justice Harlan interpreted the Fourth Amendment as prohibiting searches where (1) the parties “have exhibited an actual (subjective) expectation of privacy” and (2) that expectation must “be one that society is prepared to recognize as ‘reasonable.’” Police are not allowed to eavesdrop on a phone call (even one placed from a public phone booth) without a warrant.

Quotations:

“We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the “trespass” doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a “search and seizure” within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government’s position is that its agents acted in an entirely defensible manner: they did not begin their electronic surveillance until investigation of the petitioner’s activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner’s unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth,and they took great care to overhear only the conversations of the petitioner himself. Accepting this account of the Government’s actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts, in fact, took place.”

Background: The government requested private financial documents in connection with a fraud prosecution.

Holding: The Court ruled that a physical invasion of a person’s property is not necessary for a Fourth Amendment violation. The Fourth Amendment also protects against invasion into a person’s private matters.

Quotations:

“It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment.”

Background:Defendant Jackson sent an envelope containing a lottery circular (illegal at the time) to another, but it was identified as illegal by a postman. Jackson was charged, tried, and convicted. He then petitioned for a writ of habeas corpus and writ of certiorari, claiming that his arrest violated the Fourth Amendment.

Holding:The Supreme Court held that the government needed a search warrant to open letters and packages, but not to use the “outward form and weight” of those materials, including the name and address of the recipient. (733) It denied his habeas corpus petition.

Quotations:

“Whilst regulations excluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant, issued upon oath or affirmation, in the search for prohibited matter, they may be enforced upon competent evidence of their violation obtained in other ways; as from the parties receiving the letters or packages, or from agents depositing them in the post-office, or others cognizant of the facts. And as to objectionable printed matter, which is open to examination, the regulations may be enforced in a similar way, by the imposition of penalties for their violation through the courts, and, in some cases, by the direct action of the officers of the postal service. In many instances, those officers can act upon their own inspection, and, from the nature of the case, must act without other proof; as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed, and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases, no difficulty arises, and no principle is violated, in excluding the prohibited articles or refusing to forward them. The evidence respecting them is seen by every one, and is in its nature conclusive.”

“The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution.”

Primary Historical Sources

James Otis, Arguments Against Writs of Assistance (February 1761): “And I take this opportunity to declare, that . . . I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is. it appears to me . . . the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in the English law-book. . . . Your Honours will find in the old book, concerning the office of a justice of peace, precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses specially named, in which the complainant has before sworn he suspects his goods are concealed; and you will find in adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition being general is illegal. It is a power that places the liberty of every man in the hands of every petty officer.”

Massachusetts Declaration of Rights (enacted 1780 as part of state constitution): “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.”

To the Farmers and Planters of Maryland, Md. J., Apr. 1, 1788,reprinted in 5 The Complete Anti-Federalist: “Nay, they often search the clothes, petticoats and pockets of ladies or gentlemen (particularly when they are coming from on board an East India ship), and if they find any the least article that you cannot prove the duty to be paid on, seize it and carry it away with them; who are the very scum and refuse of mankind, who value not their oaths, and will break them for a shilling.”

New York Ratification Convention Debates and Proceedings (July 19, 1788): “[E]very freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore that all warrants to search suspected places, or seize any freeman, his papers or property, without information upon oath, or affirmation of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected, are not particularly designated) are dangerous and ought not to be granted.”

James Madison, “Bill of Rights as Proposed” (March 4, 1789):“Article the sixth. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Secondary Resources

Alok Ahuja, “Civil Forfeiture, Warrantless Property Searches, and the Fourth Amendment,” Yale L.J. (1986): When John Hancock’s sloop was seized in 1768 for its owner’s failure to pay import duties on wine, a riot ensued. The colonists’ main objection was that the courts were authorizing these property seizures “without an investigation of the merits.” The widespread popular resistance to these essentially warrantless seizures was soon reflected in judicial opinions. Faced with explicit statutory authorization for general warrants, the Superior Court of Connecticut resorted to the then-fledgling concept of “unconstitutionality” to hold the practice void. Several of the newly independent states guarded against such deprivations of property by including explicit prohibitions against warrantless seizures in their Declarations of Rights. Similarly, when the federal Constitution was presented to the states for ratification, members of the Virginia convention criticized the absence of a Bill of Rights. Patrick Henry, one of the most outspoken opponents of the Constitution, referred to the possibility that, once again, government officers would be able to seize a citizen’s property on any pretext whatsoever. In response to these strenuous objections, a committee of delegates drafted a list of recommended amendments. Article XIV of these proposals stated emphatically that “all warrants . . . to . . . seize any freeman, his papers, or property, without information on oath . . . of legal and sufficient cause, are grievous and oppressive.”

Tournament Instructions

Resolved:

Does the warrantless search and seizure of cell phone records including location data over the course of 127 days violate the Fourth Amendment?

Using historical materials related to the Fourth Amendment Clause, and the precedents of the United States Supreme Court, teams of two high school students will write an appellate brief on the FantasySCOTUS Blog arguing whether or not the search at issue in Carpenter v. United States violates the Fourth Amendment. Further, the teams will submit an oral argument video.

The Brief

After registering, teachers should contact the Harlan Institute and ConSource at info@HarlanInstitute.org, and we will randomly assign teams to argue either for or against the position. The Petitioner will argue on behalf of Carpenter that the search is unconstitutional. The Respondents will argue on behalf of the United States that the search is constitutional.

The brief should have the following sections:

Table of Cited Authorities: List all of the original sources, and other documents you cite in your brief.

Statement of Argument: State your position succinctly in 250 words or less.

Argument: By relying on atleast two primary historical sources and at leastthree Supreme Court precedents in this lesson plan, structure an argument about whether the Establishment Clause permits funding a playground associated with a church. The more authorities you cite, the stronger your argument will be–and the more likely your team will advance.

Conclusion: Summarize your argument, and argue how the Supreme Court should decide this issue.

The brief should be submitted as a blog post by February 23, 2018. The brief must be a minimum of 2,000 words. For examples of what a complete Supreme Court brief should contain, see the winning briefs from previous years:

We recommend you develop your brief in Microsoft Word or Google Docs, and paste it into the blog post when you are finished. Be sure to proof read your work. The work must be yours, and you may not seek help from anyone else–including attorneys or law students. Students who submit plagiarized briefs will be disqualified.

Preliminary Oral Arguments

In addition to the brief, each team must submit a YouTube video of their oral arguments. We will provide your teachers with questions to ask, and they can of course supplement with their own questions. Each argument must be at least ten minutes in length. The videos must be submitted with the blog post on Friday, February 23, 2018.

For examples of how the arguments should be structured please watch some of the submissions from past years.

Oral Arguments Semifinals

The top sixteen teams will advance to the oral argument semifinals, which will be held virtually over Google Hangout on March 18, 2018. Oral arguments will be judged based on our scoring rubric. More information will be provided about the semifinals after the briefs are submitted.

Oral Arguments Championship Round

The final round of the Virtual Supreme Court Competition will be held in Washington, D.C. (Last year, the event was hosted at the Georgetown University Law Center Supreme Court Institute). The Harlan Institute and ConSource will sponsor the top two teams, and their teachers, for a trip to Washington, D.C. in April 2018 to debate in front of a panel of expert judges, including lawyers, university level debate champions, and legal scholars.